Analysis: Legal experts puzzled by radical turnabout

Prof. Emmanuel Gross of the University of Haifa accused Mazuz of acting illogically and with extreme unreasonableness.

By DAN IZENBERG

June 28, 2007 23:54

3 minute read.

mazuz press 298.88.
(photo credit: Ariel Jerozolimski [file])

Attorney-General Menahem Mazuz came under harsh criticism from legal experts on Thursday for having taken such a long step backwards in the charges he finally decided to file against outgoing President Moshe Katsav.
A visibly angry Prof. Emmanuel Gross of the University of Haifa accused Mazuz of acting illogically and with extreme unreasonableness.
Former Tel Aviv University Prof. Gad Barzilai called on the public to launch an investigation into the "improper conduct" of the State Prosecution headed by Mazuz.
Barzilai attributed the drastic turnabout in Mazuz's thinking since January to, among other things, the fact that he was intimidated by the power and wealth of the ruling elite.
Gross said he simply could not explain why Mazuz had changed his mind so radically.
The fact is that Mazuz has failed to provide a satisfactory answer to the question.
On January 23, 2007, Mazuz announced that he was ready to file an indictment against Katsav for his conduct toward four women who had worked for him. The charges included rape (maximum sentence of 16 years), committing an indecent act using force, forbidden intercourse by consent by exploiting his authority in employment or service, committing an indecent act without consent, committing an indecent act by exploiting his authority and sexual harassment.
The final version involves charges against only two women. Most of the charges, including rape, were dropped.
At his press conference on Thursday, the attorney-general implied that the hearing he granted Katsav's lawyers, Avigdor Feldman and Zion Amir, had changed his mind about the charges he could successfully pursue in court.
He did not explain how the hearing had influenced his decision.
However, there are only two possibilities. The first was that Feldman and Amir provided new evidence that altered the picture that the prosecution had before it in January when it drafted the harsh original indictment.
One of the two most prominent women in the draft indictment was the "first Aleph." The state planned to file several charges against Katsav regarding his conduct toward her. In the end, the first Aleph was totally omitted from the final version.
Did Feldman and Amir provide new information regarding her that changed Mazuz's mind? Feldman categorically denied that the new information involved her. The Justice Ministry declined to comment on the matter.
If no new information appeared in this case, the prosecution and the defense had the same evidence before them. Did the attorneys provide a more persuasive scenario from the evidence than the forum of senior government attorneys with whom Mazuz consulted? If so, that says very little for the prosecution.
It is also possible that Mazuz changed his mind without the help of Katsav's attorneys. In a formal statement, the attorney-general wrote that he had dropped the charges against Katsav regarding the first Aleph because he could not determine whether or not the relations between the two were voluntary. He linked this to the fact that there was evidence of "mutual passion" - not necessarily positive - between the two.
It is no secret that there were disagreements among the forum of Justice Ministry attorneys as to how solid the evidence against Katsav was regarding the first Aleph even before the hearing granted to Feldman and Amir. Mazuz may have ultimately changed his mind and sided with the skeptics.
With regard to the "second Aleph," Mazuz indicated that the problem he had with the evidence in her case had to do with the fact that much of it was inadmissible in court because of the statute of limitations. He implied that he could not build an effective case to prove the rape charges because many of the events took place too long ago. If so, this is something Mazuz knew and should have taken into account before he made his announcement in January regarding the rape charge.
On Thursday morning, Mazuz left the impression that the prosecution had been prepared to submit the far-reaching, January indictment based on questionable evidence. As he explained, the prosecution must prove to the court that its allegations are true beyond a reasonable doubt. It also may not bring the case before the court unless it is satisfied that there is a reasonable chance of conviction. In the end, Mazuz decided that he could not be sure of fulfilling either of these conditions. The question is: Should he not have come to this conclusion in January?

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